App. Div.] First Department, April, 1910. Nathan Burkan, for the appellant. I. M. Dittenhoefer of counsel [Dudley F. Phelps with him on the brief], Dittenhoefer, Gerber & James, attorneys, for the respondent. CLARKE, J.: The plaintiff is an operatic impressario; the defendant a singer. They entered into a contract for the season of 1909-1910, beginning Monday, August 30, 1909, for thirty-one weeks, by the terms whereof the defendant was to receive a salary of $200 a week for eleven weeks and $250 for twenty weeks. She agreed to sing no less than fourteen times a month in her operatic and in such leading roles as might be given to her by plaintiff, in Italian or French, and which were within the compass and range of her voice, and her repertoire was expressed to be Carmen, Faust, Cavalleria, Pagliacci, etc. She agreed not to sing under any other management and not to sing without plaintiff's permission "in any concert or churches or benefits or charities or phonographs." She gave to plaintiff the right to renew the contract for the seasons of 1910-1911 and 19111912 at a specified salary, notice of such desired renewal to be given by plaintiff six weeks before the expiration of each season. The contract also contained the following clause, "Marguerite Sylva, acknowledging her vocal and dramatic abilities to be unique gives Oscar Hammerstein the right to obtain legal injunction in case she attempts to break or breaks this agreement." The complaint alleges that the plaintiff has performed all the conditions of the contract on his part to be performed, and that the defendant rendered services under said contract until the 21st of November, 1909, when, without just cause or provocation, and without any warning to the plaintiff, the defendant abandoned and deserted her said contract and refused and neglected, and still refuses to render services for the plaintiff herein, and asked judg ment that defendant be enjoined and restrained from rendering services to or for any other person, company or corporation, or from singing or performing until the expiration of the term mentioned in the contract. Notwithstanding the fact that in the contract defendant acknowl First Department, April, 1910. [Vol. 137. edged her vocal and dramatic abilities to be unique, and gave the right to the plaintiff to obtain legal injunction in case she attempted to break or broke the contract, she now avers in her answering affidavit, "I deny that my services are special, unique and extraordinary and that I cannot be replaced, and that he cannot secure any other artist of like ability to fill my place in his company." She then enumerates the roles in which she had appeared under the plaintiff's management and the names of numerous artists who had sung the same parts during this season in the same company and avers that the above-mentioned artists sang the defendant's roles with great satisfaction, and that each of them was in the employ of the plaintiff during the time of the defendant's employment and thoroughly familiar with and competent to sing said roles; and she enumerates the amounts paid to said artists, said payments ranging from $1,000 to $2,000 for single performances, while, as shown, defendant's contract was for $200 a week for the first eleven weeks and for $250 a week thereafter. * Without passing upon other questions raised upon this appeal, we are satisfied that the order should be reversed, because the services of the defendant are not shown to be of that unique and extraordinary quality which alone justifies an injunction pendente lite. This court, in Dockstader v. Reed (121 App. Div. 846), had under consideration a contract which contained similar clauses to that at bar. We said: "This confession and defendant's own estimate of himself is the only proof in the case that his services were unique, and that he could not be replaced. * *Notwithstanding the agreement of the defendant, we think the facts did not warrant the granting of an injunction. Parties to an agreement cannot contract that courts will exercise their functions against or in favor of themselves. Whether or not a court will so exercise its powers is for the court itself to determine. % * * Whether equity will intervene to restrain by injunction the violation of a restrictive covenant in relation to personal services depends in large measure upon whether a substitute for the employee can readily be obtained, and whether such substitute will substantially answer the purpose of the contract. The salary agreed to be paid defendant was quite moderate, and indicates that his part was quite ordinary, and manifestly could be easily filled." * * * App. Div.] First Department, April, 1910. That language is apposite here. The cases relied upon by the respondent are clearly distinguishable. In Edwardes v. Fitzgerald (New York Law Journal, January 16, 1895) the court said: "She has a charm peculiar to herself. By her grace, beauty and artistic methods she has become a special attraction. The plaintiff would undoubtedly find it difficult to procure a substitute who would be likely to produce a similar impression upon the public.” In Shubert v. Angeles (80 App. Div. 625) the court said: "She was employed because of her special talent as a mimic or imitator of other actresses and of actors." In Ziegfeld v. Norworth (134 App. Div. 951) it appeared that the defendant was the real star around whom the whole production of the plaintiff's play centered and that she had been heavily featured in announcements and advertisements so as to give her chief prominence. There is nothing in the papers at all corresponding to the facts shown in the foregoing cases. The defendant has not been featured; she is not the central figure upon whom the whole action of the play depends of any one production prepared at great expense; she is but a singer of stock parts, at a moderate salary, which parts many other members of the company have sung. For these reasons the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. INGRAHAM, P. J., MCLAUGHLIN, SCOTT and DOWLING, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. First Department, April, 1910. [Vol. 137. In the Matter of the Application of JULIA M. CURTISS, an Incompetent Person, Respondent. ELMORE S. BANKS and JOHN C. SHAW, as Committee of the Property Within the State of New York of JULIA M. CURTISS, an Incompetent Person, Appellants. First Department, April 8, 1910. Incompetent persons - application for discharge of committee -procedure-new commission unauthorized – judgment—when foreign decree cannot be attacked collaterally. Section 2327 of the Code of Civil Procedure, providing for the appointment of a commission de lunatico inquirendo, applies only to the initial proceeding for the appointment of a committee of the incompetent. Where a committee has once been appointed, no further commission can issue to determine whether the incompetent has regained her sanity, as alleged, but the proceeding should be under section 2343 of the Code of Civil Procedure which empowers the court to discharge the committee where the incompetency is at an end. Where it has been adjudged by the courts of this State that a foreign tribunal adjudging a person incompetent and appointing a committee had jurisdiction, the foreign decree cannot be attacked collaterally in this State. The incompetent claiming to be restored to sanity should proceed in the foreign tribunal. APPEAL by Elmore S. Banks and another, as committee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1910, appointing a commission and directing a writ de lunatico inquirendo to issue and inquiry to be made by the commission with a jury as to whether the incompetent is now competent to care for herself and her property. Morgan J. O'Brien of counsel [Gratz Nathan, attorney], for the appellants. L. Laflin Kellogg of counsel [Alfred C. Petté with him on the brief], Kellogg & Rose, attorneys, for the respondent. CLARKE, J.: In July, 1907, a petition was presented to the Probate Court for the district of Fairfield, Conn., representing that Julia M. Curtiss had her domicile in and was a resident of the town of Fairfield in said district, and has property and estate in said town; that by App. Div.] First Department, April, 1910. reason of intemperance and mental derangement she had become and was incapable of managing her affairs. Upon the 17th of August, 1907, the said Probate Court made an order finding the allegations in the said application contained to be true and appointing conservators for said Julia M. Curtiss, who accepted said trust and gave bond for the faithful discharge of their duties. On October 7, 1907, upon the application of said conservators, the Special Term of the Supreme Court in the county of New York appointed them the committee jointly of all the property of the said Julia M. Curtiss within this State. On July 9, 1909, the alleged incompetent filed a petition asking for the vacation of the foregoing order and on August 26, 1909, her application was granted by an order from which an appeal was taken to this court where it was reversed. (134 App. Div. 547.) This court said: "The principal question, therefore, in the present case is whether or not Mrs. Curtiss was a resident of Connecticut. If she was domiciled there the Probate Court having jurisdiction of the subject-matter, acquired jurisdiction of her person by process issued and served as permitted by the statutes of Connecticut, and its finding and decree are conclusive here and not open to collateral attack. If she was not a resident of Connecticut neither the court there nor this court ever acquired jurisdiction to support the order which was vacated below. On the question of residence we think that the preponderance of persuasive evidence is in favor of the contention that the alleged incompetent was, in legal acceptation, a resident of Connecticut. If, as we conclude, she was a resident of Connecticut, the Probate Court there had jurisdiction and its decree is conclusive here." An appeal was taken to the Court of Appeals where the order of this court was affirmed. (197 N. Y, 583.) * * A petition verified by Mrs. Curtiss on December 6, 1909, was presented to the Special Term, which set forth that she resides in the borough of Manhattan, city of New York, and is domiciled in the State of New York. She then sets up the proceedings heretofore alluded to, and alleges: "That your pétitioner is in no way addicted to the use of intoxicating liquors, nor has she any desire therefor, nor is she in any way mentally incompetent or incapacitated, but on the contrary she is now in every respect mentally sane and perfectly competent to manage and control both her person and property, |